The Law and Us

The Inaugural High Sheriff’s Law Lecture
given by The Rt Hon Lord Bingham of Cornhill KG, Senior Law Lord
at The Examination Schools, Oxford
on Tuesday, 11 October 2005

The Rt Hon Lord Bingham of Cornhill KG

Thomas Henry Bingham was born on 13 October 1933 and educated at Sedbergh and Balliol College, Oxford. He won the Gibbs Prize and obtained first-class honours in Modern History in 1957, the Eldon Law Scholarship in 1957, the Arden Scholarship, Gray’s Inn, in 1959, and a Certificate of Honour in the Bar Finals in 1959. He was called to the Bar by Gray’s Inn in 1959, becoming a Bencher in 1979.

He was Standing Junior Counsel to the Department of the Environment from 1968 to 1972, and a Recorder of the High Court from 1975 to 1980. He was a Judge of the High Court of Justice, Queen’s Bench Division, and a Judge of the Commercial Court from 1980 to 1986; a Lord Justice of Appeal from 1986 to 1992; Master of the Rolls from 1992 to 1996; and Lord Chief Justice from 1996 to 2000. Since then he has been the Senior Lord of Appeal in Ordinary.

In 1977-78 he led an investigation into the supply of oil to Rhodesia, and in 1991-92 he investigated the supervision of BCCI by the Bank of England. In 2000 he published a collection of lectures and essays, The Business of Judging. He was knighted in 1980, sworn of the Privy Council in 1986, and created a Life Peer as Lord Bingham of Cornhill in 1996. He was appointed to the Order of the Garter in 2005.

Lord Bingham holds many honorary degrees, including a DCL of the University of Oxford, where he gave the Romanes Lecture in 2002.

The Law and Us

Writing in the Financial Times magazine over the summer, an author described England as “the oldest continuously functioning state in the world” and suggested that our typically mediaeval institutions had somehow stumbled upright into the 21st century.

“Ours isn’t,” he continued, “a modern state with roots in the past. It’s a medieval state that has somehow adapted. And that says a lot about us. Good things for the most part. Things to do with our stability, our acceptance of compromise, the state’s willingness to respect the freedoms of its citizens.”¹

There could, I think, be few better illustrations of what the author meant than the office of High Sheriff. For here is a pre-mediaeval institution which has shed most if not all of the powers exercised in former times, but which has survived and adapted itself to serve what the individual office-holder sees as the needs of modern society, always - and valuably - in a local context.

So today, the High Sheriff of Oxfordshire has organised a rare meeting between those who teach the law, or are involved in its administration in a wide variety of capacities, or have no professional involvement in the law but only a degree of interest, which I shall do my best not to extinguish. I hope I may be allowed to congratulate the High Sheriff on his imaginative initiative, and also thank him for his most generous support of a small development charity, based in Oxford, of which my wife is the chairman.

Now I hope I shall not be accused of emulating President George W Bush if I introduce my theme by quoting part of a prayer. It is a prayer read in the House of Lords at the beginning of every parliamentary day. It asks that:

“the result of all our counsels may be to the glory of thy blessed Name, the maintenance of true religion and justice, the safety, honour, and happiness of the Queen, the public wealth, peace and tranquillity of the realm, and the uniting and knitting together of the hearts of all persons and estates within the same…”

Both the language and the sentiments of this extract suggest that the prayer has been in use for some considerable time. And it is of course a prayer designed for legislators, not judges or legal practitioners, although it does happen, every two or three weeks or so, that it is only judges who hear this prayer and, from time to time, it is a judge, not a bishop, who reads it.

But I think this prayer, taken out of its doublet and hose and accoutred in modern dress, tells us something of importance about what the law is and should be about.

It is not at all surprising, historically, that the maintenance of true religion was put at the top of the list, and I strongly suspect that the author intended his words to be construed very narrowly, so as to discriminate not only against all religions other than the Christian but also against all denominations other than the Anglican.

Today, we would, I think, see all this rather differently. We would not, most of us, regard it as the function of the law, as in times past, to compel belief or enforce observance or conformity. In some countries, as in India,² secularism is an express constitutional value, which the courts have acted to protect.³ But even where secularism is not an express constitutional value, as it is not in this country, there is likely to be a guaranteed right to freedom of thought, conscience and religion.

Such, after all, is to be found in the Universal Declaration of Human Rights 1948,⁴ the International Covenant on Civil and Political Rights 1966,⁵ the European Convention on Human Rights 1950,⁶ in other human rights instruments around the world and in many, perhaps most, entrenched national constitutions.

That this is an important right no one, I think, could doubt, since freedom to hold, and within limits give effect to, fundamental beliefs about the nature and purpose of life and death, and the human condition, is not something with which the state or the law should lightly interfere.

But marking out the limits in cases close to the borderline is a task calling for some sensitivity. It is one thing to proscribe human sacrifice or the self-immolation of widows. It may be less easy to decide whether Sikhs should be required to wear crash helmets or hard hats,⁷ whether Rastafarian prisoners should be permitted to wear dreadlocks,⁸ whether a Muslim pupil should be permitted to wear a jilbab instead of a shalwar kameez,⁹ whether, in reliance on certain Old Testament texts, parents should be entitled to authorise corporal punishment of their children by teachers,¹⁰ or whether peaceful proselytism could properly be proscribed.¹¹

The role of the law in this difficult and sensitive area will inevitably vary widely from one country to another, depending on a diverse range of historical, cultural, religious and social factors. But I doubt if any of us would say that the law had no role to play at all, or that its role was insignificant.

The object of maintaining true justice has a more contemporary ring to it. “But what is justice?” jesting Pilate might well have asked, and still ask. It is the most elusive of concepts, as Plato and later philosophers have demonstrated. But we can probably, on a practical level, agree on two necessary, although not sufficient, conditions for the delivery of justice under the law.

The first is that the judges should be independent. This will no doubt strike this audience as too banal, too obvious and too uncontroversial to be worth mentioning. It should be. But I mention it for two reasons.

The first is that this condition, however familiar, is not as widely understood, certainly in this country, as one might hope. Only a matter of weeks ago a mass-circulation tabloid announced that the Prime Minister had “ordered” the judges to do something or other. I forget what and it does not matter.

Now I hasten to make clear that the Prime Minister had, of course, done no such thing. He knows as well as anyone that the judges are sworn to administer justice according to the laws and usages of the realm and not according to ministerial or prime ministerial diktat, which is something altogether different. If, inconceivably, any prime minister were to take it upon himself to act in such a way, the judges would be bound to take no notice. The significance of this newspaper report is not that it has any affinity with the truth, but that any journalist, let alone millions of readers, should suppose that it did.

The second reason for mentioning independence is that while most governments in the developed world unreservedly accept the principle of judicial independence, few governments show the same readiness to accept the important reality of it, which is that from time to time governments lose cases which they wish to win and fail to establish points which they wish to establish.¹²

As an American academic author has recently written:

“Judicial independence is, of course, a salient characteristic of the rule of law. It is not at all clear from the record, however, that the United States favors the judicial independence of the International Court of Justice, especially in cases involving matters affecting the vital interests of the United States. On the contrary, as illustrated by the US withdrawal from the compulsory jurisdiction of the Court and its recent use of the Court’s chamber procedures, the United States would appear to prefer to choose on a case-by-case basis judges who are unlikely to deviate in their decisions from strongly held US political positions.”¹³

In the international sphere, the United States has, and has exercised, a measure of choice. In the domestic sphere, the possibility of tension between the executive and the judges underlines the paramount need to ensure that the integrity of the judicial function is securely protected by very strong constitutional or institutional safeguards.

This protection must cover not only the higher ranks of the judiciary, who are on the whole best placed to look after themselves, but also those operating at lower levels. I have in mind in particular the lay magistracy and their clerks, on whom the administration of justice so heavily depends.

The second necessary condition for the delivery of justice under the law is that the judges should be impartial. That does not only mean that they should have no vested interest in the outcome of a case and should not be corrupt, which goes without saying. Nor does it only mean that they should be untainted by any political or partisan allegiance, although we would all, or almost all, think they should.

Above all, I suggest, it means that no judge should have an agenda of his or her own, that is, a slate of outcomes, whether declared or undeclared, to which the judge hopes or plans to give effect through the exercise of judicial authority. The familiar words of the judicial oath, also used, I believe, in many Commonwealth countries, provide the only agenda that any judge should have.

That is why I, for my part, would resist the holding of searching nomination hearings to vet prospective judicial appointees or candidates for judicial promotion. For such hearings can easily involve enquiry into a person’s judicial philosophy and record, and the moment a person is taxed about his personal beliefs or the effect of his past judicial decisions, the temptation arises for the judge to ask him or herself, in a given case, what decision would be consistent with the judge’s reputation as a liberal, a conservative, a strict constructionist, a feminist, a libertarian, a defender of civil rights, or whatever, and not, as he should, what is the lawful and just resolution of the particular case.

The maintenance of true justice requires that the laws themselves should be just, a matter over which the judges themselves have no more than partial control. They have greater control over the process of adjudication, and experience in many countries over many years has led to general acceptance of certain core principles.

They are perhaps these: that a matter should not be finally decided against any party until he has had an opportunity to be heard; that a person potentially subject to any liability or penalty should be adequately informed of what is said against him; that the parties to any contest, civil or criminal, should make adequate disclosure of material helpful to the other party or, which is the same thing, damaging to itself; that where the interests of a party cannot be adequately protected without the benefit of professional help which the party cannot afford, public assistance should so far as practicable be afforded; that the innocence of a defendant charged with criminal conduct should be presumed unless and until his guilt is proved; that no one should be punished for an act or omission which was not criminal when the conduct occurred; and that penal sanctions should not be finally imposed save by judicial officers.

None of these principles is, perhaps, incapable of modification, depending on the context and circumstances. But the maintenance of true justice does, I suggest, require that any modification be authorised and be the subject of intense and anxious scrutiny.

I move on in the parliamentary prayer to “the safety, honour, and happiness of the Queen”, which in modern terms must perhaps be understood as directed not to the monarch personally, for whom a separate prayer has by this stage already been said, but to the stability and continuity of good government.

This is a valuable reminder, for while Alexander Hamilton was doubtless right to describe the judiciary as the weakest and least dangerous department of government,¹⁴ having control over neither the sword nor the purse, it is nonetheless a department of government. The courts are the medium through which the law of the land, whether expressed in enactments of the legislature or the judge-made common law, is brought to bear in cases of doubt, difficulty, default or defiance. That is why the state establishes, accommodates and finances the courts, and makes its coercive powers available to them.

This governmental function is reflected in the very clear duty of the British courts to give faithful effect to enactments of the legislature and ministerial orders made in the lawful exercise of statutory powers. It appears to be suggested on occasion that the judges in some way seek to impede or frustrate the conduct of government. This is a complete misunderstanding.

It is a premise of government in a modern democracy governed by the rule of law that government should be conducted in accordance with the law. The judges are, in an apt expression of an Indian author, Professor Sathe, “auditors of legality”.¹⁵ This inevitably means that from time to time official conduct will be held to be unlawful and official orders quashed. This is not because the judges disapprove of the official policy objective or seek to defeat it - their personal views, if any, are wholly irrelevant - but simply because the conduct is contrary to the law which the judges are charged to administer. The ultimate treason for any judge is knowingly to uphold as lawful that which is unlawful, or vice versa.

In giving effect to enacted law, the judiciary, as a department of government, is ordinarily giving effect to the will of the democratically elected majority represented in the legislature. This is, in an important sense, what democracy means: the will of the majority prevails over that of the minority.

But there is one increasingly important qualification of which mention should be made. In very many countries express provision is now made for the protection of human rights. This may be because such protection is written into an entrenched constitution, as in India and a number of Caribbean countries and as, of course, in the United States. Or it may, as in Canada, New Zealand and this country, be afforded by a parliamentary enactment giving effect to a charter or bill of rights. In either case the majority, in adopting the constitution or the enactment, has ordained that these rights shall be guaranteed or protected.

But the rights themselves are intrinsically counter-majoritarian. It is not the rich, the powerful and the represented whose human rights are liable to be neglected or abused. They can on the whole look after themselves, and minorities have little opportunity, otherwise than by violence or terrorism, to oppress the majority. So human rights instruments exist to protect vulnerable minorities.

I have no doubt that such minorities can be readily identified everywhere. Here, one thinks particularly of prisoners, mental patients, homosexuals, gypsies, certain racial and religious minorities, immigrants or applicants for asylum. One might elsewhere think of aboriginals, bonded labourers, tribals displaced by great public works projects, pavement dwellers, untouchables, certain classes of women and children, or victims of extreme urban deprivation or industrial disease.

Some of these groups are disliked, resented or despised. None commands majority support at the ballot box. That is why the protection of their rights is treated as important. But it should not be a surprise that decisions of the courts vindicating such rights, in accordance with the requirements of the constitution or the relevant human rights legislation in question, on occasion provoke howls of criticism by politicians and the mass media. They generally reflect majority opinion, and it is precisely because majority opinion views these groups with disfavour that human rights guarantees are needed.

It is worthy of remark in passing that in Britain, and I suspect almost all Commonwealth countries, obligations solemnly undertaken and binding on them in international law would oblige them to protect these rights even if there were no domestic imperative of the constitution or legislation requiring them to do so.

The next ingredient in the parliamentary prayer is “the public wealth of the realm”. It is an important ingredient, since thriving societies, like winning football teams, must enjoy generally higher levels of contentment and self-fulfilment than losers, and the real losers in this context are countries ravaged by high levels of disease, ignorance, poverty and crime.

So it is appropriate to ask: is the public wealth of the realm something to which the law, and lawyers and judges, can contribute?

There are of course many factors, intimately affecting the public wealth of the realm, which practising lawyers cannot influence: the possession, or lack, of natural resources; geography and climate; the political and social systems; the management of the national economy; the tax system; the regulation of industry and commerce. And in some countries, the UK among them, matters such as competition, intellectual property rights and customs duties are increasingly governed by international convention.

There are, however, three ways in which, as I would suggest, what lawyers do or fail to do can make a significant difference.

First of all we must recognise, as I think we do, that business of any kind can be successfully conducted only within a framework of clear and accessible legal rules. Only a gambler will enter into a transaction where the rewards of performance or the price of non-performance, or the definition of either, is unknown or unpredictable.

As Lord Mansfield famously ruled:

“[In all] mercantile transactions the great object should be certainty. And therefore it is of more consequence that a rule should be certain than whether the rule is established one way or the other: because speculators in trade then know which ground to go upon.”¹⁶

But Lord Mansfield, as we know, went to great lengths, by consulting a corps of special jurymen experienced and expert in commercial matters, to ascertain and give effect to the practice and expectations of market practitioners, recognising that commercial law is not an end in itself but a means of facilitating the conduct of business.

Since the commercial law of this and many other countries remains largely non-statutory, it is still important that court decisions should by and large reflect the reasonable commercial needs and expectations of honest market practitioners and not establish rules or conventions divorced from market practice and inhabiting an unreal world of their own. It is further desirable that the law should lean in favour of enterprise, as the common law has done, for instance, in its distaste for restraints on trade.

The advantages which accrue to a country whose commercial law is market-friendly and, generally speaking, unlegalistic were apparent to Lord Mansfield and continue to be so. By “unlegalistic” I do not of course mean that there should be no rules. In any legal system worth the name there must be rules. I mean that the rules should be such as will command acceptance among reasonable and honourable members of the commercial community, who in a world of global activity and instant communication can no longer be treated as if confined within narrow, national boundaries.

Secondly, recognising that differences are bound to arise in the course of business, even where there is no question of fraud, bad faith or sharp practice, the public wealth of the realm is promoted by provision of speedy, relatively informal, inexpensive and expert procedures for resolving such differences.

In England and Wales it was the judges who, in 1894, in the absence of any statutory or rule-making authority, established the Commercial List of the Queen’s Bench Division which, after 75 years,¹⁷ blossomed into the Commercial Court. That court has proved a considerable success, and a magnet for business from all over the world. It has done so even though the objectives of speediness, save in cases of pressing urgency; relative informality, save in matters of evidence; and inexpensiveness have, here as elsewhere, proved elusive.

This success has been possible, I think, largely because of the court’s reputation for expertise, on the part of the commercial judges and, perhaps more important, those practising before them. This matters. It is recorded that on 1 December 1663, after dinner, Samuel Pepys dropped into the Court of King’s Bench sitting in the Guildhall in the City of London. The case was concerned with marine insurance. It was a great occasion. The Lord Chief Justice was presiding and, as Pepys recorded:

“there was all the great counsel in the kingdom in the case”.

Pepys was more amused than impressed:

“but it was pleasant,” he wrote, “to see what mad sort of testimonies the seamen did give, and could not be got to speak in order, and then their terms such as the judge could not understand, and to hear how sillily the counsel and judge would speak as to the terms necessary in the matter would make one laugh.”

The current judges and practitioners do not need instruction in “the terms necessary in the matter”. As I said when the centenary of the court was celebrated:

“They [the judges] need not be told that NCAD stands for ‘notice cancellation at anniversary date’ or that HSSC stands for ‘heat, sweat and spontaneous combustion’. Apparently random aggregations of initials such as FC & S, PPI, RITC, FPA, are as intelligible to them as FOB and CIF to the man on the Docklands Light Railway. They are as familiar with bottomry bonds as with Euro bonds, bail bonds and performance bonds; with letters of mart and countermart as with letters of intent. They can distinguish at a glance between a beam and an intercostal, an angle bar and Z-bar frame, a strake and a stringer. They are no strangers to inherent vice.”

And, thirdly, it is open to us as lawyers to promote the public wealth of the realm by facilitating, encouraging and above all not obstructing or impeding the resolution of differences by means other than litigation.

Now it is of course true that for many arbitrators, conciliators and non-judicial decision-makers the most valuable service the courts can render is to keep right out of alternative processes. This to a very large, perhaps even excessive, extent they now do. But it is highly desirable that relations between the two groups, who often overlap, should be based on respect and mutual regard; that the right to resolve disputes outside the courts should be fully recognised;¹⁸ and that the courts should only intervene when, and to the minimum extent, strictly necessary.

And so to the “public peace and tranquillity of the realm”. For the mass of our population this is the paramount purpose of the law: to protect members of society, living peaceably in their habitations, from the violence, assaults, depredations, violations and anti-social conduct of others.

So, from earliest times, societies have stigmatised certain classes of conduct as criminal, calling for punishment or recompense or both. There is scope for legitimate debate about where the boundaries of criminal conduct should be drawn, and as societies change so do the boundaries. In this country, for instance, insider-dealing used not to be criminal but now is;¹⁹ suicide was a crime but has ceased to be so.²⁰

Almost all of us, however, would regard it as an important objective of a well-functioning legal system that it should lead to the conviction of those proved guilty of conduct proscribed as criminal in domestic law, should lead to the acquittal of those not proved to be guilty, and should lead to the imposition of such penalties as may be appropriate on those convicted. The punishment of wickedness and vice is a long-standing function of government as of the law. This surely is uncontroversial. A system which did not, generally, achieve these objects could scarcely hope to command the confidence of the public.

But this is not an unproblematical area. It may indeed be said to illustrate the truth of Dr Johnson’s lines:

“How small of all that human hearts endure,
That part which laws or kings can cause or cure.”²¹

It is tempting, but not, I think, very sound, to believe in a close connection between the administration of criminal justice in the courts and the prevalence of crime in the country. This is a belief which inspires legislators, in this country at least, as they restlessly enact an unending series of criminal justice statutes. It also inspires some judges when passing sentence on those convicted. And it would doubtless be wrong to deny any connection.

In some instances, of which drunken driving is perhaps the best example, the imposition of criminal liability can shape moral thinking. More people would doubtless seek to evade payment of tax if it were not for the fear of exposure and prosecution. Conviction of certain crimes rightly carries a social stigma.

But there are, I suggest, two reasons why the closeness of the connection should not be exaggerated. The first is that the very great majority of those who commit crimes are never identified, caught, prosecuted or punished. Thus the deterrent effect which public prosecution, conviction and punishment might reasonably be expected to have is greatly weakened by the realistic expectation of most of those who perpetrate crimes that they are quite unlikely to be caught. It might be otherwise if there were a strong and realistic expectation of conviction. What I say imports no criticism of the police, who in many parts of this and other countries face an immense and daunting challenge. It cannot, however, be supposed that the increasing of maximum penalties and the fine-tuning of procedure will markedly affect the behaviour of those who confidently expect never to be tried at all.

The second reason why, as I venture to suggest, the closeness of the connection should not be exaggerated is because it assumes a considerable measure of rational calculation on the part of those who commit crimes. In some cases this is doubtless justified: one thinks of contract killers, hijackers, kidnappers, hostage-takers, serious robbers, drug traffickers, perpetrators of high-level fraud and the like, criminals who commit crimes on a careful calculation of risk and reward.

But these are not the majority of the criminal population. The majority, surely, is made up of those who resort to violence in hot blood, perhaps inflamed by drink; those who steal to fund a powerful addiction to drugs; those who fall prey to sexual urges which they cannot, or in any event do not, control; those, of whom our prisons are full, who lack the mental capacity to foresee what the consequences of a given course of conduct may turn out to be. I am not in any way suggesting that the criminal justice process is inappropriately applied to people such as these, only that the process has a limited effect on the conduct of those whose behaviour is not the product of rational choice. Through no fault of its own, the criminal justice process very largely addresses the symptom and not the disease.

There is a further problem in this area: that the process of gradual, incremental development which is the hallmark of the common law is not perhaps very aptly followed in the field of crime, where no one should in principle be penalised for doing anything not clearly criminal when he did it.

Jeremy Bentham’s famous castigation of “dog-law” bears repetition:

“It is the judges [as] we have seen that make the common law. Do you know how they make it? Just as a man makes law for his dog. When your dog does anything you want to break him of, you wait till he does it, and then beat him for it. This is the way you make laws for your dog: and this is the way the judges make law for you and me. They won’t tell a man beforehand what it is he should not do - they won’t as much as allow of his being told: they lie by till he has done something which they say he should not have done, and then they hang him for it.”²²

Some Commonwealth countries, notably Canada, have responded to this problem by abolishing common law offences and codifying the criminal law. In other countries, such as this, the criminal law is largely statutory but some common law offences and rules survive.²³

This can give rise to controversy, as when the judges abrogated the old rule that a husband living with his wife could not be convicted of raping her.²⁴ This decision was upheld by the European Court of Human Rights as the adaptation of an old rule to changed circumstances,²⁵ a similar decision has been made by the High Court of Australia,²⁶ and I do not doubt it was right to strike down a deeply offensive anachronism.

But the dangers are evident. They are not, however, confined to common law offences. When the question arose whether “bodily harm” in the Offences against the Person Act 1861 extended to cover psychiatric harm of a kind unknown when the Act was passed, it was held that it did.²⁷ This again is a decision with which I agree, unsurprisingly since I was party to it.²⁸

I do however suggest that in relation to the public peace and tranquillity of the realm the role of legal practitioners and judges is and should be very largely technocratic. Whatever scope for creativity there may be in other areas of the law - itself a subject which arouses considerable controversy - there is very little in this.

So I come finally to “the uniting and knitting together of the hearts of all persons and estates within the same”. The prayer continues with a reference to “true Christian love and charity one towards another”, which I have omitted, but I think this object can fairly be understood as directed to social cohesion, which must ultimately depend on social harmony and a sense of belonging.

Is this an object to which lawyers and judges can contribute? I would be sorry to give a negative answer, since this must surely be the overriding object of all civil society. Happily, and no doubt predictably, I do not think we need give a negative answer.

We learn from Boswell that, in the view of Dr Johnson:

“a decent provision for the poor is the true test of civilization.”

Gentlemen of education, he observed, were pretty much the same in all countries; the condition of the lower orders, the poor especially, was the true mark of national discrimination.²⁹

This gives rise to points which, however obvious, are surely fundamental: that every society is characterised by the values which underlie its laws, both those which are enacted and those which are made by judicial decision; and that social cohesion and harmony depend on a broad sense among the general public that those values are, on the whole, reasonable, reflective of contemporary opinion and inclusive.

The clearest and most comprehensive expression of these values is probably to be found in the bills or charters of rights to which I have already referred. The right to life, being the most fundamental of all rights, should be specially protected. People should not, ever, be inhumanely treated or punished. They should not, ever, be tortured even in the hope of discovering the truth, for, as was said 150 years ago:

“Truth, like all other good things, may be loved unwisely - may be pursued too keenly - may cost too much.”³⁰

They must not be enslaved. They must not be arbitrarily imprisoned. Any trial, criminal or civil, must be fair. There must be no “dog-law”. The individual’s right to personal autonomy - in personal affairs, belief, expression, association, marriage, ownership and education - should, subject to necessary intrusions, be respected. Enjoyment of these rights should not be the subject of discrimination on grounds such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with any minority, property, birth or other status.

Genuine respect for values such as these must surely be the most effective antidote to any sense of alienation, of not belonging, which any of our citizens may feel. But perhaps, as Johnson perceived, even that is not enough if the rewards of society are seen to be distributed too unevenly between its richest and poorest members. We need not evict the rich man from his castle, but it would be hard to commend a society which absolved him from all responsibility for the poor man at his gate.

Here, however, I am conscious of beginning, impermissibly, to cross the Rubicon which divides that which is properly legal and judicial from that which is political, and so the exclusive province of those elected to represent and serve the people. So I must trespass no further, reminding myself, as I acknowledged at the outset, that this is after all a prayer for legislators, and not for legal practitioners and judges.

October 2005

¹ Harry Bingham, “Dad’s Army”, FT Magazine, 6-7 August 2005, p 24.
² Articles 27 and 28 of the Indian Constitution.
³ See S P Sathe, Judicial Activism in India, Oxford, 2001, chap 5, pp 161-194.
⁴ Article 18.
⁵ Article 18.
⁶ Article 9.
⁷ See Motor-Cycles Crash Helmets (Religious Exemption) Act 1976, re-enacted in the Road Traffic Act 1988, and the Motor-Cycle (Protective Helmets) Regulations 1980; Employment Act 1989.
⁸ See S Poulter, Ethnicity, Law and Human Rights, Clarendon Press, 1998, pp 338, 346, 348.
⁹ R (SB) v Governors of Denbigh High School [2005] EWCA Civ 199, [2005] 2 All ER 396.
¹⁰ R (Williamson) v Secretary of State for Education and Employment [2005] UKHL 15, [2005] 2 AC 246.
¹¹ Kokkinakis v Greece (1993) 17 EHRR 397.
¹² Burmah Oil Co Ltd v Lord Advocate [1965] AC 75 is perhaps the best-known example. The decision was reversed by the War Damages Act 1965.
¹³ J F Murphy, The United States and the Rule of Law in International Affairs, Cambridge, 2004, pp 46-47.
¹⁴ The Federalist Papers, No 78.
¹⁵ Op cit, p 3.
¹⁶ Vallejo v Wheeler (1774) 1 Cowper 143, 153; Lofft 631, 643; 98 ER 1012, 1017, 843.
¹⁷ Administration of Justice Act 1970, section 3.
¹⁸ The Civil Procedure Rules 1998 encourage alternative dispute resolution: see Halsey v Milton Keynes General NHS Trust [2004] 1 WLR 3002; Dunnett v Railtrack plc [2002] 1 WLR 2434; R (on the application of Cowl) v Plymouth City Council [2002] 1 WLR 803.
¹⁹ Criminal Justice Act 1993, section 52, replacing the Company Securities (Insider Dealing) Act 1985, replacing sections 68-73 of the Companies Act 1980.
²⁰ Suicide Act 1961, section 1.
²¹ Lines added by Johnson to Goldsmith’s poem The Traveller: The Poems of Samuel Johnson, ed D Nichol Smith and E L McAdam, Oxford, 1941.
²² Truth versus Ashhurst, written in 1792 and published in 1823.
²³ This is despite initiatives to codify the criminal law in both the nineteenth and twentieth centuries.
²⁴ R v R [1992] 1 AC 599.
²⁵ SW and CR v United Kingdom (1995) 21 EHRR 363, paras 43/41-44/42.
²⁶ The Queen v L (1991) 174 CLR 379.
²⁷ R v Chan-Fook [1994] 1 WLR 689; R v Ireland [1998] AC 147.
²⁸ R v Burstow [1997] 1 Cr App R 144.
²⁹ James Boswell, Life of Johnson, ed R W Chapman, Oxford Standard Authors, 3rd edition, 1970, p 446.
³⁰ Pearse v Pearse (1846) 1 De G & Sm 12, 28-29; 63 ER 950, 957, per Knight Bruce V-C.